S.C.GADIHOKE vs Meerut Development Authority

THE grievance of the applicant, as expressed in its application filed before the Commission, is that after having promised to hand over the possession of the allotted house on payment of the amount as demanded, the offer of the house in a dilapidated condition is an unfair trade practice on the part of the respondent Authority within the meaning of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (for short, the Act). It is explained that pursuant to the advertisement regarding "Shatabadi Nagar Group Housing Scheme" on Delhi-Rewari National Highway, Meerut launched by the respondent in the year 1991, the applicant applied for three bed room apartment and paid a sum of Rs. 15,000/- towards registration amount. It also paid a sum of Rs. 30,000/- towards the allotment amount as demanded by the respondent. On further demand made by the respondent vide instalment letter dated 28.4.1991, the applicant paid four instalments of Rs. 25,000/- each on 31.5.1991, 25.11.1991, 13.6.1992, and 26.2.1993. THE penal interest of Rs. 190/- and Rs. 1,125/- for belated payment of instalment Nos. 3 and 4 respectively was also paid. Even the subsequent demand of Rs. 60,000.00 payable at the time of handing over possession of the house was paid on 29.1.1997. THE respondent thereafter informed the applicant to take over the possession of the house No. B-210 as allotted. On inspection of the house, the same was found to be in a dilapidated condition inasmuch as it was not in a habitable condition. THEre was no provision for water, electricity and sewerage. THE applicant accordingly asked for refund of Rs. 2,05,000/- with interest of Rs. 2,43,150/- @ Rs. 18% per annum from the date of deposit made. For having not fulfilled its promise in terms of the tall claims made in the advertisement, the respondent allured the applicant to buy the house as a consequence of which it suffered loss. THE applicant is, therefore, entitled to compensation for losses/damages suffered on account of unfair trade practices on the part of the respondent along with refund of its amount with litigation cost. In addition it is also entitled to a sum of Rs. 2,00,000.00 for mental torture and harassment contends the applicant. This is to be allowed under Section 12B of the Act under which the application stands filed.

THE contention of the respondent on the other hand is that the applicant has not been discriminated qua other allottees. THE allotment letter conveyed the estimated cost of the house which was subject to revision on determination of final cost, as duly communicated to the applicant. THE applicant itself refused to take the possession of the house when offered. THE respondent is still ready to refund the amount. On completion of the pleadings, the followings issues were framed : (1) Whether the respondent is or has been indulging unfair/restrictive trade practices as alleged in the complaint application ? (2) If so, whether any loss or damage caused to the applicant on account of such unfair/restrictive trade practices ? (3) Relief, if any.

Affidavit and counter affidavit have been furnished by way of evidence along with supporting documents.

RIVAL submissions have been carefully considered. Both the parties have subjected themselves to the terms and conditions of the brochure/agreement. As held by their Lordships of the Supreme Court in the case of Bareily Development Authority, reported in AIR 1989 SC 1076, as the relation between the parties would be contractual the petitioners could only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of Meerut Development Authority in the said contractual field. As per payment plan given in the brochure, the estimated cost of the three bed room apartment was indicated at Rs. 4.50 lakhs as under : Type Registration Amount Allotment amount Four half yearly instalment At the time of handing over Cost (approximately) 3-Bed room 15,000.00 30,000.00 25,000.00 each 60,000.00 4,50,000/- * Balance in quarterly instalment, spread over 12 years with 16% interest per annum. * Preference in allotment will be given to persons making cash down payment. Admittedly, the applicant applied for a 3-Bedroom Apartment which was also allotted to it. However, as admitted by the applicant as well acknowledged by the respondent Authority, the applicant paid only 1.00 lakh as against four half-yearly instalments, which work out to Rs. 2.00 lakhs. In absence of any letter for the payment of remaining instalments and the time of possession, it is not clear whether the demand was raised in terms of the brochure or not. Suffice to say that the applicant knew the final price of the flat as mentioned in its application, though the same was objected to by the applicant. However, in view of the refund claimed in 1998, the minimum the respondent could have done was to refund the amount as prayed in his letter dated 4.4.1998. This is more so when the possession of the flat, complete in all respect, could not be handed over to the applicant. It is true that there is no time frame laid down for handing over the possession of the flat, yet the same is to be given within a reasonable time and six years cannot be held to be a reasonable in absence of any specific reasons pleaded for the delay. A glance on an advertisement would show that the respondent had clearly represented that the flats would be modern with windows open to the garden and lawns having green path way in front of every apartment and open space or a terrace with every apartment. Leave apart these facilities, the flats were not even complete within a period of six years time. The photographs clearly show the type of construction and the incomplete state of the flats. Therefore, the only inevitable conclusion is that the respondent has clearly misrepresented and misled the applicant in booking the flat and after receipt of substantial money, it has neither handed over the house in a condition promised to be handed over, nor given the refund as demanded. As a consequence of the same the applicant suffered losses/damages in terms of the deprivation of income earned on the amount deposited. For this it is entitled to compensation which we would award in terms of interest @ 12% per annum on the instalments paid from the date of instalments till the date of refund. The respondent is directed to refund the amount paid at Rs. 2.05 lakhs along with interest @ 12% per annum as stated earlier. Litigation cost is also awarded at Rs. 5,000/-. No compensation for the mental torture is awarded as is held to be not allowable in view of the decision of the Hon''ble Supreme Court in the case of Ghaziabad Development Authority v. Union of India & Anr., reported in II (2000) CPJ 1 (SC)=IV (2000) SLT 654=JT 2000 (8) SC 154. Respondent is also directed to file an affidavit by way of compliance, within six weeks. C.A. disposed of.